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The Supreme Court cannot at this stage admit the fresh evidence sought to be tendered by Atiku Abubakar in his appeal challenging the outcome of the February 25 poll, President Bola Ahmed Tinubu has argued.
He urged the highest court to reject the purported fresh evidence Atiku and his party claimed to have obtained from the Chicago State University (CSU).
Tinubu contented that the Supreme Court could no longer assume trial jurisdiction in the case since the 180 days for the hearing of the election petition had since lapsed.
He added that not only is the new evidence strange to the proceedings having not been presented during the trial, but Atiku and the Peoples Democratic Party (PDP), who were joint petitioners at the Presidential Election Petition Court (PEPC), did not challenge the poll outcome on the ground of forgery.
Also, Senate Leader, Opeyemi Bamidele, noted that Atiku and the PDP never pleaded before the PEPC any document or deposition from the CSU in support of their fourth ground on Tinubu’s alleged non-qualification.
Bamidele, in a counter-affidavit, stated that if they had done so, Tinubu would have had the opportunity to respond appropriately, including raising alleged discrepancies in Atiku’s credentials.
These are contained in the counter-affidavit and written address filed by Tinubu through his team of lawyers led by Chief Wole Olanipekun (SAN).
They are in response to the application by Atiku and his party seeking the permission of the Supreme Court to introduce fresh evidence in their appeal.
Atiku and the PDP had appealed the September 6 judgment of the PEPC, which dismissed their petition challenging Tinubu’s victory.
The President, in the written address, argued that the Supreme Court cannot accept the written deposition of the Registrar of the CSU, who was not a witness before the PEPC and whose written statement was not activated through oral evidence as required by Section 41(1) of the First Schedule to the Electoral Act 2022.
Tinubu argued: “It is not in doubt that the deponent of the deposition sought to be introduced as additional evidence was not orally examined at the lower court.
“The appellant has not made a case for the court to override the provision of Paragraph 41(1) of the First Schedule to the Electoral Act or referred to any law permitting the use of the deposition outside the confines of Paragraph 41(1) of the 1st Schedule.
“The appellants are attempting the impossible – thus, they have not stated whether the evidence is documentary or oral evidence because it fits into neither.”
He also argued that the Supreme Court no longer has the power to assume trial jurisdiction because the 180 days allowed by the Constitution for the hearing of election petition lapsed on September 17.
“In the circumstance, this honourable court is without the vires to consider the said deposition either as oral or documentary evidence, moreso when same was not considered by the court of first instance within the 180 days timeframe provided by the Constitution,” the President stated.
According to Tinubu, admission of fresh evidence can only be based on sections 22 and 33 of the Supreme Court Act.
He argued: “For this honourable court to be able to give effect to Section 33 of the Supreme Court Act, which is the bedrock for Order 2 Rule 12(1), the jurisdiction of the lower court must be alive.
“Unfortunately for the appellants, however, this jurisdiction died as far back as 17th September 2023 upon the expiration of 180 days from the date of filing of the petition by the appellants.
“In recent times, even in very dire and pathetic situations, this honourable court has been faced with supplications from parties to consider the merit of their actions which was left unattended by the trial court after consideration of threshold issues.
“However, being bound by the provision of section 285(6) of the Constitution, this honourable court has consistently declined.”
Tinubu, who is listed as the second respondent in the appeal, contended that the application by Atiku and the PDP did not satisfy the condition in which the court can accept fresh evidence.
“We reiterate that the new document/deposition was neither pleaded nor listed at the lower court,” the President said.
He accused Atiku and his party of deliberately misrepresenting facts before the Supreme Court in relation to their claim that he was not qualified to contest the election.
Tinubu argued that the Supreme Court cannot admit the deposition by the CSU’s Registrar and additional documents (marked Exhibits C and D) because the deposition was not made before a court but in the office of Atiku’s lawyer.
He argued that there is no connection between the appeal and the documents that Atiku and the PDP went to the US to obtain and which they seek to tender.
Citing the Supreme Court’s judgment in the case Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188, Tinubu submitted that the latest application by Atiku and the PDP “is meant to harass, irritate and annoy the respondent (Tinubu),” adding that “it is reckless and frivolous, and there is no iota of law supporting it.
“From the foregoing, it is safe to submit that this application is a crass abuse of the processes of this honourable court.
“Arising from the foregoing, we urge the Supreme Court to resolve the sole issue formulated in this address against the appellants/applicants and in favour of the respondent.
“In conclusion, and for the reasons and arguments advanced in this address, we urge the Supreme Court to dismiss this application,” he said.
Bamidele, in the counter affidavit, stated that the only fact Atiku and the PDP pleaded in support of ground (d) of the petition, relating to qualification was where they stated: “The petitioners aver that the second respondent was, at the time of the election, not qualified to contest the election, not having the constitutional threshold.”
He noted that the ‘deposition on oath from the Chicago State University’, which the appellants are now praying the Supreme Court for permission to supply, “is not one of the documents listed by the appellants as petitioners in their petition and list of documents accompanying the petition”.
He added: “The respondents vehemently objected to the introduction by the petitioners of fresh allegations of forgery of academic certificates and dual citizenship through their reply on diverse grounds, including the fact that they were not pleaded; that there was no ground in the petition to connect them; that they could not bring in those fresh allegations through a reply; that the time for them to introduce new facts had elapsed by statutory and constitutional imperatives.”
Bamidele stressed that the appellants were aware of the existence of the documents they now seek to tender, but chose to wait for the PEPC to conclude its proceedings before seeking to present them.
He stated: “It was only on 2nd of August, 2023 that the first appellant commenced his action against the Chicago State University at the U.S. District Court for the Northern District of Illinois – in re: Application of Atiku Abubakar for on Order Directing Discovery from Chicago State University Case No. 23-CV-05099.
“August 2nd, 2023 when the appellants commenced their application … is a period of 155 days from the date the second respondent (Tinubu) was announced as the winner of the presidential election on 1st March 2023; 134 days from the date the appellants filed their petition on 21st March 2023; 40 days from the date the appellants closed their case before the lower court on 23rd June 2023; and 24 hours after parties adopted their addresses before the lower court on 1st August 2023.
“The 180 days from 21st March 2023, when the appellants filed their petition, expired on 17th September 2023.”
Bamidele stated that the appellants deliberately went silent on the date they commenced their case before the US court because they knew they were acting outside the time allowed by the Electoral Act.
“Throughout the supporting affidavit to the appellants’ motion, they deliberately
omitted/left out the day they commenced their action against the Chicago State University at the US District Court,” the Senator added.
Bamidele stated that he testified as Tinubu’s second witness before the PEPC and knew that Atiku and his party never raised the issue of forgery against Tinubu, which would have afforded him the opportunity to respond.
The Senate leader insists that had the issue been raised at the lower court, Tinubu would have had the opportunity to demonstrate that it is only Atiku who has discrepancies in his secondary school certificate, which he has failed to explain.
He stated: “It is the 1st appellant’s acclaimed Primary School certificate, bearing the name ‘Atiku Kojoli’ and his purported 1965 West African School Certificate and General Certificate of Examination bearing the name ‘Siddiq Abubakar’ (as opposed to the name ‘Atiku Abubakar’, which he claims to Nigerians and INEC to be his) that are yet to be explained by Jeda Primary School Adamawa (which he claimed to have attended), the University of Cambridge Local Examinations Syndicate, West African Examination Council or such other credible institution with the capacity to so do.
“If the appellant had made a case of forgery in his petition at the lower court, the respondent would have put the appellant’s said alleged West African School Certificate and General Certificate of Examination in issue.
“There are so many allegations against the first appellant in the public domain, and to which he has access, but that since the appellants as petitioners before the lower court did not make any iota of allegation against him regarding forgery in their petition, he did not join issues with them in his reply, as he could only reply to what they did not plead in their petition.
“There is no singular ground of appeal against the decision of the lower court touching on its resolution of the issue of forgery, which the appellants attempted to introduce at the lower court, despite not being part of their petition.
“The appellants have also consequently not formulated any issue in respect of any subject bordering on forgery in their brief of argument filed on 2nd October 2023.
“The appellants are not praying this honourable court for leave to raise a new issue on appeal, either in their notice of appeal or brief of argument.
“It is improper for the appellants to maintain any form of ex-parte correspondence with this honourable court as they confess to having done, without putting other parties, including the second respondent in copy/notice of same.
“The first and third respondents (INEC and the APC) were not present at the proceedings in the US and they never had the opportunity of examining or cross-examining the witness whose deposition and record of proceedings, the appellants seek to tender herein.”
